The Texas Clemency Memos

As the legal counsel to Texas Governor George W. Bush, Alberto R. Gonzales—now the White House counsel, and widely regarded as a likely future Supreme Court nominee—prepared fifty-seven confidential death-penalty memoranda for Bush's review. Never before discussed publicly, the memoranda suggest that Gonzales repeatedly failed to apprise Bush of some of the most salient issues in the cases at hand

The Gonzales memoranda suggest that Gonzales was rarely, if ever, prompted to delve deeply into the cases he was reviewing for Bush. In his summary of the case of Carl Johnson, for example, dated September 18, 1995, the day before Johnson's execution, Gonzales failed to mention that Johnson's trial lawyer had literally slept through major portions of the jury selection. His memo on Irineo Tristan Montoya, dated June 18, 1997, the day of Montoya's execution, omits the single most important issue in the case: an alleged violation of international law, which had been brought to Bush's attention by, among others, the U.S. Department of State. His memo on Bruce Edwin Callins, dated May 21, 1997, the day of Callins's execution, fails to note that Callins's appeal to the Supreme Court generated the most famous death-penalty dissent in the past quarter century, written by Justice Harry Blackmun, a longtime death-penalty supporter.

Karla Faye Tucker's 1998 clemency review is one of the few in which any evidence exists of a significant discussion between Bush and Gonzales, and the only instance in which Gonzales is known to have provided any documentation beyond the execution summary. Bush cites the Tucker case as evidence of his compassion and his attentiveness to the process of clemency review. Gonzales has said that he and Bush began discussing Tucker's case months before the execution. Bush's autobiography devotes fifteen pages to Tucker. He writes that he anguished over his decision and had difficulty sleeping the night before her execution, and that signing off on it "was one of the hardest things I have ever done"; in the moments leading up to Tucker's execution he "felt like a huge piece of concrete was crushing me as we waited."

Why should Bush have been so tormented by assenting to Tucker's execution? According to the Bush standard for clemency, her case wasn't even worthy of consideration. Tucker didn't claim that she was innocent of murdering Jerry Lynn Dean and Deborah Thornton with a three-foot-long pickax in 1983. She said that she had been treated fairly by the courts and deserved her punishment. What helps to explain Bush's concern, of course, is that Tucker's case was the most highly publicized of any during his tenure as governor. In prison Tucker had become a born-again Christian, like Bush. Her execution was opposed by, among others, one of Bush's daughters and a slew of otherwise ardent death-penalty supporters, including Pat Robertson and Jerry Falwell, who became convinced that she was remorseful, repentant, and rehabilitated. Nevertheless, dozens of Texas death-row inmates could claim similar conversion experiences, remorse, and repentance; and dozens had compelling claims regarding innocence or due process.

More than anything else, the Tucker case illustrates how Bush sought to deny responsibility for executions. "I could not convert Karla Faye Tucker's sentence from death to life in prison [without the BPP]," Bush stated, citing Texas law. Gonzales made the same point in a letter to the papal nuncio in Washington, who before the BPP made its recommendation had written Bush on behalf of the Pope to solicit clemency for Tucker: "Ms. Tucker's sentence can only be commuted by the Governor if the Texas Board of Pardons and Paroles recommends a commutation of sentence." Of course, Bush did intervene in the subsequent Lucas case before hearing from the BPP.

Gonzales did not tell the papal nuncio that even after the BPP denied clemency the governor could have invoked a thirty-day reprieve to postpone this or any other execution. Bush didn't use this power because he had no interest in impeding the BPP, which was infamous for rubber-stamping executions. In a December 1998 district court hearing on a lawsuit brought by the death-row inmate Joseph Stanley Faulder (in whose trial a principal state witness was promised more than $10,000 by the prosecutor to testify), Judge Sam Sparks concluded, "It is abundantly clear the Texas clemency procedure is extremely poor and certainly minimal." Sparks found that "none of the members" of the BPP read clemency petitions in their entirety; that "a flip of the coin would be more merciful than these votes"; and that the board provided no rationale whatsoever for its clemency recommendations. "There is nothing," Sparks said during the hearing, "absolutely nothing that the Board of Pardons and Paroles does where any member of the public, including the governor, can find out why they did this."

Alberto Gonzales told me in 2000 that in his execution briefings he always presented Governor Bush with a "detailed factual background of what happened," along with "other outstanding facts or unusual issues." Yet a close examination of the written execution summaries he prepared for Bush certainly raises questions about the thoroughness of Gonzales's approach—and, ultimately, given the brevity of the summaries and the timing of their arrival at the governor's office, about the level of attention Bush could possibly have devoted to the clemency process. In his summaries of the cases of Terry Washington, David Stoker, and Billy Gardner, Gonzales did not make Governor Bush aware of concerns about ineffective counsel, essential mitigating evidence, and even compelling claims of innocence. These were all matters of life or death, requiring in-depth explanation and discussion, that no attorney in Gonzales's position should leave out of a written case summary or save for a thirty-minute oral briefing—especially if both are to be delivered on the very day of a scheduled execution. In a state where the criminal-justice system has erred with well-documented regularity, this was a grave failing.

Alan Berlow, a freelance journalist, writes frequently about criminal-justice issues. He is the author of Dead Season: A Story of Murder and Revenge (1996). His documentary about jurors in capital murder cases, "Deadly Decisions," was produced for American RadioWorks and broadcast on NPR stations last year. His article "The Wrong Man" appeared in the November 1999 Atlantic.